Lilly v. County of Orange, 94 Civ. 5703 (WCC).

• Citation: 910 F. Supp. 945
• Decision Date: 10 January 1996
• Docket Number: No. 94 Civ. 5703 (WCC).,94 Civ. 5703 (WCC).
• Parties: Kimberly G. LILLY, Plaintiff, v. COUNTY OF ORANGE, Deputy Sheriff Jeanne Bunting and Deputy Sheriff Brian Hayen, Defendants.
• Court: U.S. District Court — Southern District of New York

910 F. Supp. 945

Kimberly G. LILLY, Plaintiff, v. COUNTY OF ORANGE, Deputy Sheriff Jeanne Bunting and Deputy Sheriff Brian Hayen, Defendants.

No. 94 Civ. 5703 (WCC).

United States District Court, S.D. New York.

January 10, 1996.

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Shamberg Marwell Hocherman Davis & Hollis, P.C., Mount Kisco, New York (P. Daniel Hollis, III, Ann Marie Collins, of counsel), for Plaintiff.

Richard B. Golden, County Attorney for Orange County, Goshen, New York (John J. Gibson, of counsel), for Defendant.

OPINION AND ORDER

WILLIAM C. CONNER, Senior District Judge:

Plaintiff Lilly brought an action pursuant to 42 U.S.C. § 1983, alleging that the Orange County Sheriff's Department and two deputy sheriffs had violated plaintiff's constitutional rights. Plaintiff sought $2 million in damages from the Sheriff's Department; $2 million in damages from Deputy Sheriff Hayan; and $2 million in damages from Deputy Sheriff Bunting. After a jury trial, the jury found that Deputy Sheriff Bunting had violated section 1983, and awarded plaintiff $11,500 in compensatory damages. Plaintiff now seeks attorney's fees and costs, pursuant to 42 U.S.C. § 1988, in the amount of $37,968.75 (including $539.25 in disbursements).

DISCUSSION

Section 1988 provides that, in a section 1983 action, "the court, in its discretion, may allow the prevailing party ... a reasonable attorney's fee as part of the costs." A prevailing plaintiff "should ordinarily recover an attorney's fee unless special circumstances would render such an award unjust." Hensley v. Eckerhart, 461 U.S. 424, 429, 103 S.Ct. 1933, 1937, 76 L.Ed.2d 40 (1983) (quoting S.Rep. No. 94-1558, p. 1 (1976); Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402, 88 S.Ct. 964, 966, 19 L.Ed.2d 1263 (1968)).

Defendants argue that a downward adjustment of fees is appropriate because (1) the amount of time spent and hourly rates charged were not reasonable and (2) plaintiff did not achieve total success on her claims.

As an initial matter, a plaintiff must be a "prevailing party" to recover attorney's fees under section 1988. Hensley, 461 U.S. at 433, 103 S.Ct. at 1939. Plaintiff Lilly was awarded damages on her section 1983 claim against one of three defendants. Clearly, Lilly is a "prevailing party." See id. ("A typical formulation is that `plaintiffs may be considered "prevailing parties" for attorney's fees purposes if they succeeded on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit.'" (quoting Nadeau v. Helgemoe, 581 F.2d 275, 278-79 (1st Cir.1978)); Farrar v. Hobby, 506 U.S. 103, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992) (civil rights plaintiff awarded "nominal damages" of one dollar out of the $17 million requested was a "prevailing party").

After crossing this "statutory threshold," the district court must determine what fee is "reasonable." Id. Hensley provides that the starting point is the hours reasonably expended multiplied by a reasonable hourly rate (the "lodestar" method). As required by Hensley, plaintiff has submitted a schedule that details the amount of time spent on various matters, and the amount charged per hour. See Ex. C. Defendants argue that "the fees requested by plaintiff's attorney should be reduced by at least thirty-five percent (35%) because the hours expended and the hourly rates each is excessive." Def.'s Mem. of Law in Opp. to Application for Attorney's Fees, at 5 ("Def.'s Mem."). For the reasons discussed below, we find that an award of $35,313.25, including disbursements, is a reasonable fee.

I. Hours reasonably expended times reasonable hourly rate

A. Reasonable hourly rate

Defendants argue that an attorney's limited experience in prosecuting or defending civil rights cases, as well as the small size of his firm, warrant a reduction of the lodestar amount. Def.'s Mem. at 5 (citing Malarkey v. Texaco, Inc., 794 F.Supp. 1237, 1245-46 (S.D.N.Y.1992), aff'd, 983 F.2d 1204 (2d Cir. 1993)). Plaintiff's counsel charged $225 per hour for work performed by Mr. Hollis; $200 per hour for work by Mr. Frank (both partners); and $80 per hour for work by a paralegal.

1. Mr. Hollis' hourly rate

Defendants argue that $225 per hour is excessive for a lawyer with limited civil rights litigation experience who is a partner in a small firm in Westchester. See Malarkey, 794 F.Supp. 1237 (plaintiffs' counsel awarded $175 per hour); Rivera v. Dyett, 762 F.Supp. 1109 (S.D.N.Y.1991) (plaintiff's counsel awarded $165 per hour). Defendants urge that $165 per hour is a more reasonable rate than $225 per hour. Neither Malarkey nor Rivera justifies such an adjustment.

Plaintiff's counsel in this case seeks the hourly rate that he normally charges. See Ex. B (setting forth the hourly rates charged by each attorney and paralegal in counsel's firm). The actual rate that counsel can command in the market place is evidence of the prevailing market rate. See, e.g., Soba v. McGoey, 761 F.Supp. 273, 275, 278 (S.D.N.Y.) (court adopted the normal billing rates of the plaintiff's law firm, which represented plaintiff on a pro bono basis, even though the plaintiff's attorneys lacked civil rights litigation experience), aff'd, 935 F.2d 1278 (2d Cir.), cert. denied sub nom. McComiskey v. Soba, 502 U.S. 909, 112 S.Ct. 303, 116 L.Ed.2d 246 (1991). In Rivera, cited by defendants, the court awarded an hourly rate that was the average of counsel's normal fees of $150 to $180 per hour. Malarkey also is of no avail to defendants because that court cited specific reasons (none which are applicable here) for adjusting counsel's fees.

The district court has broad discretion in deciding the reasonable hourly rate. Mr. Hollis normally charges $225 per hour, and defendants have failed to submit specific contrary evidence tending to show that a lower rate would be appropriate. We conclude that $225 per hour is a reasonable hourly rate for a partner with Mr. Hollis's litigation experience practicing in Westchester.

2. Mr. Frank's hourly rate

Defendants argue that the rate of $200 per hour charged by Mr. Frank is excessive because (1) it is not clear whether Mr. Frank was a partner or an associate and (2) plaintiff provided no information demonstrating the extent of Mr. Frank's civil rights or litigation experience. Defendants urge this court to award $100 per hour for Mr. Frank's work, based on Malarkey, where the court awarded $100 per hour for work performed by an associate. However, plaintiff indicates in her Reply papers that Mr. Frank is a partner, not an associate. Furthermore, defendants cite no authority for the proposition that a court should reduce an attorney's hourly rate for lack of experience. An attorney's hourly rate already should account for experience (general litigation or otherwise), and the rates normally charged provide compelling evidence of prevailing market rates. Therefore, we decline to adjust Mr. Frank's hourly rate.

3. Paralegal's hourly rate

Defendants argue that the rate of $70 per hour charged for paralegal work is excessive for a Westchester law firm.¹ Because plaintiff provides no evidence describing the experience, training and salary of the paralegal used, defendants argue that a 50% reduction is appropriate. Def.'s Mem. at 6. Defendants then argue that $25 per hour is a reasonable fee for paralegal services. See Pickman v. Dole, 671 F.Supp. 982, 990 (S.D.N.Y.1987).

We agree that $80 per hour charged for paralegal work in this case is excessive. We find that a 50% reduction in the fee charged for paralegal services is warranted.²

B. Reasonable amount of time spent

Defendants attack the reasonableness of the hours expended by plaintiff's counsel on the following grounds: (1) failure to delegate simpler litigation tasks to associates in the firm; (2) improper accounting of travel time; and (3) unreasonableness of time expended in specific instances.

1. Failure to delegate

Defendants argue that partner level attorneys who are paid premium rates should not be fully compensated for time expended on tasks that can be delegated to lower paid associates. Defendants argue that 39 hours expended by Mr. Hollis "could have been delegated to a junior associate with little supervision." Def.'s Mem. at 7. Specifically, defendants cite the following hours:

a) 8.6 hrs. (4/14/93-7/13/93, 8/30/93)—preparation of the notice of claim and the performance of pre-litigation conferences;

b) 7.0 hrs. (10/15/93)—prepare for and attend 50h hearing;

c) 1.4 hrs. (10/18/93, 11/18/93, 11/19/93)— preparation of medical release and letters to doctors;

d) 6.2 hrs. (11/16/93, 2/8/94-2/16/94)—revision of complaint;

e) 2.5 hrs. (2/8/94)—review 50h transcript;

f) 13.3 hrs. (11/30/94-12/6/94)—prepare for and conduct EBTs.

The proper test is an ex ante, not ex post, inquiry whether or not certain tasks should have been assigned to more junior level attorneys. We find counsel's delegation of tasks to be reasonable.³

2. Travel time

Defendants argue that an attorney's normal rate should be charged for travel time only when it can be shown that legal work was performed during travel. The Second Circuit has not ruled specifically on the compensability of attorney travel time. However, it has indicated that "a different rate of compensation may well be set for different types of litigation tasks." Cohen v. West Haven Board of Police Commissioners, 638 F.2d 496, 505 (2nd Cir.1980).

We find it appropriate to reduce attorney's fees for travel time by 50% for lack of productivity. We find a reduction in this case particularly appropriate because counsel drove himself to conferences and other appointments, rather than using public transportation, in which case he might have demonstrated sufficient productivity to warrant his full rate for travel time. Because counsel has not separately allocated fees for travel time, we must estimate how much time was billed for travel. Based on counsel's...